The Fair Work Commission (FWC) has ordered an employer to reinstate an employee who was dismissed for breaching the employer’s grooming and uniform policy. The employee had refused (because of his body image disorder) to cut his hair short.

Implications for employers

If an employee claims he/she is unable to comply with the terms of a workplace policy because of, for instance, a medical condition or other protected attribute, the employer should carefully consider the circumstances and all relevant evidence (including expert medical opinion) before finding that the employee failed to comply with the requirements of his/her role. If an employee has attempted to comply with the policy to the best of his/her ability and within the framework of the relevant medical condition, the employer should consider allowing substantive compliance with the policy, rather than insisting on strict technical compliance. Employers should also ensure that workplace policies are applied consistently to employees in the same/similar circumstances.

Background: legislation

The Fair Work Act 2009 (Cth) (FW Act) prohibits termination of employees where this is harsh, unjust or unreasonable. To defeat such a claim, the employer must have a valid reason for the termination based on the employee’s capacity or conduct and take appropriate procedural steps (sections 385 and 387).

Background: facts

Virgin Australia International Airlines Pty Ltd (Virgin) had a “Look Book” in place which set out the company’s grooming policy. The Look Book prescribed a “business appropriate” style haircut for men and displayed photos of approved hairstyles (which were all short haircuts).

A flight attendant, Mr Taleski, informed Virgin management he had grown his hair long for religious reasons. Subsequently, he stated that he had medical grounds (a body image disorder) for not complying with the short hair policy and provided eight medical certificates in support of this. Mr Taleski attempted to compromise by styling his hair to make it appear shorter and wearing a wig. However, Virgin management insisted that it had not been provided with sufficient medical information to exempt Mr Taleski from complying with the grooming policy and Mr Taleski would only be compliant with the policy if he actually cut his hair.

Accepting a recommendation from human resources, Virgin management decided to dismiss Mr Taleski. At a final meeting with Mr Taleski, a manager read from a script which was prepared earlier by a human resources’ employee, and stated that Virgin had decided to terminate his employment. Mr Taleski was sent a letter of termination that same day, stating he was being dismissed as he had not:

  • provided further medical documentation about the condition;
  • demonstrated an “intent to comply with the stated requirements of his role”; and
  • followed the correct grievance resolution process.

Mr Taleski filed an unfair dismissal application under section 394 of the FW Act.

Decision

Commissioner Cribb was not satisfied that there was a valid reason for Mr Taleski’s dismissal, as:

  • the medical certificates provided Virgin with sufficient information regarding Mr Taleski’s diagnosis, clarified why he was not able to cut his hair, and outlined treatment timeframes;
  • Mr Taleski demonstrated an intention to comply with policy “to the best of his ability and within the framework of a body image disorder”; and
  • although evidence indicated that Mr Taleski “exhibited an unwillingness to follow business process and accept business decisions”, this, on its own, did not constitute a valid reason for his dismissal.

Commissioner Cribb also found that “the decision to terminate Mr Taleski’s employment was made prior to putting the allegations to him … before he had an opportunity to respond”.

The FWC has discretion to consider any matters it deems relevant when assessing whether a dismissal is unfair (section 387(h) of the FW Act). In this case, Commissioner Cribb took into account the facts that Virgin had exempted another employee who suffered from the same condition from complying with the policy and caused Mr Taleski stress.

Commissioner Cribb decided to reinstate Mr Taleski to his position, on the basis that:

  • Mr Taleski was “passionate about flying and extremely keen to return to doing that”;
  • there was no evidence of previous or other disciplinary issues or concerns regarding Mr Taleski’s work performance;
  • Virgin is not a small employer and has a large number of cabin crew employees; and
  • there was no evidence that “the employment relationship had broken down and was irretrievable”.

Commissioner Cribb determined that Mr Taleski should be paid lost remuneration between the time of his dismissal and reinstatement however, allowed the parties an opportunity to confer over the amount for a period of three weeks.

Decision to be appealed

Virgin promptly lodged an appeal against Commissioner Cribb’s decision, and in the interim sought a stay on compliance with the decision.

Deputy President Greg Smith granted the application to stay the reinstatement order (pending the outcome of the appeal), on the condition that Virgin pay Mr Taleski’s lost remuneration of $26,000 into an interest-bearing account. At the time of writing, the appeal has not yet been determined.